Edwin v Thomas [1971] TTLawRp 13; 5 TTR 326 (10 May 1971)

	Home \| Databases \| WorldLII \| Search \| Feedback Reports of the Trust Territory of the Pacific Islands

Action to dri jerbal rights in Melo Wato on Wotje Island, Wotje Atoll. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that attempt to cut off dri jerbal rights was invalid as senior dri jerbal had no authority without specific iroij approval to cut off rights without good reason and none was shown in case.

Dri jerbal rights given as ninnin do not vest solely in the last survivor, rather the descendants of those to whom such rights were given have inheritance rights.

When a man gives his children, with all necessary consents, the alab rights in land a's ninnin under Marshallese system of land ownership, the presumption, in the absence of a clear showing to the contrary, is that the gift fails to give any rights to that part of the children's maternal lineage outside of these children and their descendants.

A will transferring dri jerbal rights to be valid must be approved by the iroij lablab, but such approval to be effective must be based on both careful investigation to ascertain that all necessary lineage consents have been given and that there is adequate justification if the rights of others are cut off.

Under Marshallese custom, establishment of dri jerbal on a particular piece of land can be stopped by iroij lablab of that land and is supposed to have his consent.

Under Marshallese custom, establishment or reestablishment of dri jerbal may be accomplished by those having lesser rights in land, without any affirmative act or express decision by iroij lablab, but merely with his acquiescence or implied consent.

In passing on land matters, iroij lablab must act with honest regard for the welfare of his people and with reasonable consideration for rights of all those having interests in the land.

Iroij lablab, in pasing on land matters, must have good reasons for his decisions when these would upset rights that have been clearly established.

A senior dri jerbal has no authority without specific iroij approval to cut off another dri jerbal without good reason.

Under Marshallese custom, it is the requirement that the iroij must have good reason to cut off vested interests and very much· the same result is achieved under the common law of the United states under the doctrine of estoppel.

When a person stands by and does nothing when he knows someone is changing his position because of an assumed right he may not subsequently Come forward and object.

To attempt to remove someone who has been allowed to enter upon land and begun to clear it, without objection, after the improvement work has been done and to thereby take advantage of the work is basically unfair and is not permissible under the doctrine of estoppel.

Until a successor alab is recognized in that office, he is without authority to act

Assessor:	KABUA KABUA, Presiding Judge, District Court
Interpreter:	J. JOHNNY SILK
Reporter:	NANCY K. HATTORI
Counsel for Jeramol:	MONNA BUNITAK
Counsel for Kotwaj and Jaburu:	LEVI L.

2. Thomas transferred dri jerbal rights to Melo Wato, Wotje Atoll, to his children.

3. Ned instructed his daughter, Lonna; her husband; and her children, Jeramol and family, to develop and live on Melo Wato by letter in 1954. After five years of preparation building a boat and earning money for purchase of tools and supplies they went to Wotje in 1959 after Ned's death in that year.

4. No question as to their right to occupy Melo Wato was raised by anyone, including Kotwaj and Jaburu, until after the wato had been cleared and planted, other improvements made and harvesting of copra had begun.

5. Kotwaj wrote two wills, the first transferred dri jerbal rights to descendants of Thomas children except Lonna and Jeramol. This will was replaced by a will two weeks later transferring dri jerbal rights.to his grandson, Esbon, also known as Herkon Kotwaj Thomas.

6. Neither Kotwaj nor Jaburu and their witnesses were able to prove that there, was any or sufficient misconduct on Jeramol's part to cut off his dri jerbal rights. Testimony as to the alleged offenses' committed by Jeramol against Kotwaj and Jeburu was without substance, was no more than rumor and gossip, and was insufficient to justify action against Jeramol.

7. Wotje Island, Wotje Atoll was purchased by the Japanese prior to World War II. The price paid for dri jerbal rights to Melo Wato was 5,000 Yen which was divided equally between the five children of Thomas.

8. The island vested in the Trust Territory Government after World War II and has not formally been returned to the former owners by the Trust Territory Government.

[1, 2] The dri jerbal rights given as ninnin by Thomas to his children, of whom Kotwaj was the last survivor, did not vest soley in Kotwaj after the death of Ned. The descendants of Ned and his other brothers and sisters have inheritance rights under Marshallese custom. This Court held in a comparable situation relating to alab rights in Limine v. Lainej , 1 T.T.R. 231, 234:-

Clearly Kotwaj held dri jerbal rights as ninnin from his father in Melo Wato. So also did the descendants of his older brother Ned, whose grandson was Jeramol.

Kotwaj attempted to justify cutting off the decendnats of his brothers and sisters, including Jeramol, on two grounds. The first was that his will transferring dri jerbal rights to his grandson, to the exclusion of all others was valid and therefore effective because it had been approved by Leroij lablab Limojwa and for the alternative reason that Jeramol had offended him and other members of the lineage.

[3] As to the first of these grounds, it is true that a will to be valid must be approved by the iroij lablab. But such approval to be effective must be based on both careful investigation if the rights of others are cut off.

[4, 5] As to the general rule, this Court said in Alek v. Lomjeik, 3 T.T.R. 112, 117: -

The approval of Kotwaj's will was ill-considered by Leroij lablab Limojwa and was without investigation on her part or by Iroij erik Namo to whom she had given authority to act in her behalf.

[6, 7] It is clear Leroij lablab Limojwa did not realize Kotwaj's second will cut off all descendants of Thomas': children who were entitled to dri jerbal rights in Melo Wato as ninnin. This, she would not have done without good reason and from the testimony of Iroij erik N amo; neither he nor she had good reason to cut off Jeramol from the land. This Court has pointed out in Abija v. Larbit,: 1 T.T.R. 382, 385, that an iroij lablab "in passing on land matters, '. . . must act with an honest regard for the welfare of his people and with reasonable consideration for the rights of all those having interests in the land; that there must be a good reason or reasons for his decisions; especially when these would upset rights that have been clearly established . . . . "

[8, 9] As has already been pointed out Kotwaj, even though he is senior dri jerbal, had no authority without specific iroij approval to cut off Jeramol without good reason and none was shown in this case. However, there is yet another reason present which as a matter of substantial justice shows why Jeramol should not be removed from the land. Under Marshallese custom, it is the requirement that the iroij must have good reason to cut off vested interests but very much the same result is achieved under the common law of the United States under the doctrine of estoppel. 28 Am. Jur.. 2d, Estoppel.

[10, 11] When a person stands by and does nothing when he knows someone is changing his position because of an assumed right, he may not subsequently come forward and object. Here Kotwaj, knowing of the five years of preparation by Jeramol and his family, made no objection when Jeramol entered the land and began clearing it. To attempt to remove Jeramol after the improvement work had been done and to hereby take advantage of the work is basically unfair and is not permissible under the doctrine of esstopel. Also see: Jibor v. Tibiej, 2 T.T.R. 38. Taina v. Namo, 2 T.T.R. 41.

Even though we have held Kotwaj and Jaburu did not have, or at least did not show any justification for attempting to cut off Jeramol's rights, it also must be emphasized that all parties are obliged to get along peacefully with each other. This obligation of peaceful corporation between persons having interests in lands was emphasized in Jatios v. L. Levi, 1 T.T.R. 578, 587.

[12] As far as Jaburu is concerned, she has no authority to terminate Jeramol's interest as she sought to do in her complaint. Jaburu is the successor alab and until she is recognized in that office, she is without authority to act. Even when she becomes alab, she must show good cause for the removal, which she did not do, and obtain the consent of the iroij.

Finally, all that has been said as to interests in Melo Wato on Wotje Island, Wotje Atoll, and the control of the land by the interests of iroij lablab, iroij erik, alab and dri jerbal is subject to trust Trust Territory Government purchase, in the Alien Property Custodian in accordance with 27 T.T.C., Section 2. The government's authority under the statute is to "hold, use, administer, liquidate, sell or otherwise deal with alien property in the interest and for the benefit of the indigenous inhabitants of the Trust Territory . . . . " Jeramol, Kotwaj and the others claiming interests in Melo Wato are claimants, occupants and users by sufferance. Until the Trust Territory Government sees fit to make a determination regarding Wotje Island, the rights held by sufferance shall remain in effect and will be recognized and enforced in this Court until the status of the land is charged.

Reports of the Trust Territory of the Pacific Islands

Edwin v Thomas [1971] TTLawRp 13; 5 TTR 326 (10 May 1971)